Bill 139: A new planning regime is on the horizon

On May 30, 2017, the Province of Ontario did what previous governments were unable (or unwilling) to do for over 30 years – dramatically reform the Ontario Municipal Board and the manner in which land use planning is practiced across the province. The Province tabled Bill 139, the Building Better Communities and Conserving Watersheds Act, 2017 for its 1st Reading in the provincial legislature. Bill 139 builds on the Province’s review of the scope and effectiveness of the Ontario Municipal Board initiated in 2014.

Bill 139, if passed as proposed, will fundamentally change the planning and appeals process. The Bill proposes changes to the Planning Act, the City of Toronto Act, the Ontario Planning and Development Act, and the Conservation Authorities Act, and would replace the Ontario Municipal Board with a newly titled Local Planning Appeal Tribunal (LPAT or Tribunal). To do so, Bill 139 repeals the Ontario Municipal Board Act and replaces it with the Local Planning Appeal Tribunal Act, 2017. It important to note that Bill 139 has only had one reading in the legislature, so it may be subject to changes before it achieves Royal Assent. Even so, no one should underestimate the substance of the changes proposed or the enormous question of how we transition from the OMB regime to the new world of the LPAT.

This blog will focus on the key information that planning professionals, developers, and community members need to know about the proposed changes.

First, it’s important to recognize the Province for the remarkable breadth and scope of this initiative and the level of coordination between the proposed changes to the planning and appeal process in Ontario and the new Provincial Plans released on June 16, 2017.

Overview of the proposed changes

The following is a (non-exhaustive) list of the proposed changes in Bill 139:

Dramatically reduces the number and type of municipal and provincial decisions before the Tribunal.

Gives more time for municipalities to make decisions (generally an additional 30 days).

Introduces new requirements that several types of planning matters can only be appealed on grounds that the matter fails to conform with or conflicts with a provincial plan/municipal plans/policies.[1]

Limits on Tribunal decisions. On most matters the Tribunal does not make a decision, rather the Tribunal would return the matter to Council to make “new decision” within 90 days. If the “new decision” is appealed or if the municipality fails to make a “new decision”, and also meets the conformity test, the Tribunal may then modify the planning instrument to establish appropriate conformity. This means

The elimination of de novo hearings; and

Far more limited scope or opportunity for the Tribunal to change a municipal decision.

Introduces new Official Plan policies. Aligning with the new policies in the Growth Plan, the proposed changes to the Planning Act require that all municipalities “shall include climate change policies in their official plan” and “may include policies that identify the area surrounding and including an existing or planned higher order transit station or stop as a protected major transit station area” in their Official Plan. These policies are to be updated through a municipal comprehensive review and will be approved by the Minister. In all instances, once these policies are established and approved by the appropriate approval authority, no appeals in Major Transit Station Areas (as defined by the Growth Plan 2017) are permitted. If an Upper Tier municipality updates their Official Plan per Section 16 of the Planning Act, Lower Tier municipalities must update their Official Plans accordingly within one year of the upper-tier plans coming into effect.

Restrictions on appeals to Secondary Plans for two years, limiting appeals to the passing of an Interim Control By-law, and restricting appeals to municipal official plan and zoning updates around major transit station areas i.e. subway and GO stops. (See our blog post exploring the new policies for major transit station areas).

Expansion of the authority of a Local Appeal Body to hear appeals related to Site Plan Control. Currently, only minor variances and consent applications can be heard by a Local Appeal Body, and the City of Toronto is the only jurisdiction so far to establish a Local Appeal Body.

Updating of the Rules and Practice and Procedure to better control hearings, improve case management, to focus on mediation, and providing for and requiring the use of hearings or of practices and procedures that are alternatives to traditional adjudicative or adversarial procedures.

New limitations on oral hearings, timelines for oral hearings, and the ability to examine witnesses and adduce (introduce) new evidence.

Introducing a Local Planning Appeal Support Centre for the local community to access free legal and planning support across the Province.

Bill 139 has only had one reading before the legislature and the transition policies and regulations are not yet available for review, so the full nature and extent of the changes to the land use planning system are uncertain. What is clear, however, is that, if passed as proposed, the planning and development system in Ontario would be fundamentally changed. Furthermore, it is likely there will be several years in some type of “planning limbo” with certain matters still continuing to be resolved under the current OMB regime while new matters are addressed under the LPAT system.

What are we to make of the dramatic new world of planning approvals and appeals?

For many, limiting appeals only on the basis of a lack of conformity or consistency to Provincial Plans or Policy Statements or Official Plans provides an uncertain test since Provincial policies are purposefully broad and some municipal and regional official plans to not provide levels of specificity needed, suggesting the determination of a municipal decision’s consistency with such plans may be too easy and/or restrictive. However, when municipal zoning by-laws are not up to date with Official Plan policy and/or may not reflect the heights and densities desired by Provincial plans, those seeking amendments to bring sites into conformity with provincial and municipal plans may find surprising support.

It will be interesting to see what Toronto, and other GGH municipalities benefiting from major transit investments, will choose to do with regard to delineating Major Transit Station Areas and required accompanying policies for height and density. Will all higher order transit stations and stops that meet the Growth Plan definition of MTSAs and Planning Act definition of higher order transit? What methodology will be employed to assess the existing, proposed and future development potential, including heights and densities, within these Major Transit Station Areas? In particular, we are curious whether the Province will issue guidelines for measuring and achieving the density targets around MTSAs.

Some have interpreted Bill 139 as ‘a charter for NIMBY’ism’. This may be a rush to judgement, as the standards for intensification – and potentially for the appropriate measures to combat climate change – could pressure municipalities to articulate and impose quite significant as-of-right height and density permissions in substantial parts of their cities, providing them with no easy option for local opposition.

And then there are a series of issues that have got the planning community talking:

How will councils, with more authority to make a decision without the fear (or protection) of an appeal to the OMB, change the way they make their decisions knowing their decisions must conform or not conflict with Provincial plans/municipal plans/policies?

How will these changes impact the amount and type of lobbying toward municipal Council members, and for that matter, provincial civil servants and elected officials, if developers traditional route to the OMB is frustrated?

Will the nature and extent of public and stakeholder consultation and engagement for municipally initiated Official Plan changes (Municipal Comprehensive Reviews, Secondary Plans etc.) change if approvals and future amendments are restricted from appeal once the new plans/policies are in force?

We note that while the Policies 2.2.4.2 and 2.2.4.3 of the Growth Plan state that municipalities “will” delineate the boundaries of MTSAs, Section 16(15) of the Planning Act states that municipalities “may” update their Official Plan to include major transit station area policies. How will this distinction impact municipality’s that may/may not want to create such policy in return for sheltering from appeals?

Will the Province ensure it is adequately staffed to review and make decisions on the conformity exercises, particularly the achievable density and heights around all MTSAs (there were 333 MTSAs as of 2012)?

What will happen to existing files backlogged with the OMB? What will happen if these applications do not conform with the latest Growth Plan? How will Clergy Principle arguments be resolved (The Clergy principle states that, generally, land use planning applications must be judged on the basis of the law and policy in place on the date of the application)? Even without transition policies drafted, it is clear that there would be a long time in which the planning system will need to operate under two regimes.

How will planning and approvals be affected during the next several years until the comprehensive reviews are undertaken (to be completed by July 2022) and finally come into effect? For instance, in the interim, can development sites within 500m of an MTSA be appealed on the basis that the proposal is in conformity with the Growth Plan and that the amendments sought are bringing the applicable Official Plan and Zoning into conformity with the Growth Plan?

It appears that despite the intention to create Local Appeal Support Centres, participant status (and party status for non-applicants) will be more difficult to achieve at the Tribunal than previously with the Board.

For developers, unfortunately, not much is clear as to how the application process will function going forward. What is clear is that sites along Major Transit Station Areas will be afforded more density and protections from appeal providing the applicable Official Plan and Zoning are updated sufficiently to meet provincial growth targets. Furthermore, climate change and other intensification policies will provide additional support for inner city intensification. In areas outside of MTSAs the application process will likely be more difficult unless there is a strong planning rationale that the proposal conforms with provincial plans and policies.

Until the Bill has been debated in the legislature, many details on the new planning regime will be outstanding, especially since there are no proposed transition policies to direct under which regime applications will be processed. However, developers, municipal, regional, provincial planners in both the public and private sector do need to consider the implications of the new, very substantial, policy directions on the practice of planning in Ontario.

The Ministry of Municipal Affairs will be accepting public comments on the proposed legislation until August 14, 2017, through the EBR registry.

[1] The specific wording in the Act varies depending on the planning matter and the relevant section of the Planning Act that applies. There are different requirements for official plans, official plan amendments, applications to amend an official plan, plans of subdivision, zoning, zoning amendments, application to amend a zoning by-law. The requirements vary for single, upper and lower tier municipalities, and change depending on the approval authority.

There is no doubt this is a complex and complicated suite of policies and legislation. At Urban Strategies, we are here to help you. If you need to know more about these Plans and what they mean for you, your land, or community, please contact us: